Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24738/94

by Timo Taavetti KAUKONEN

(subsequently Teemu Martti KAUKONEN)

against Finland

The European Commission of Human Rights sitting in private on

8 December 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms; Having regard to the

application introduced on 5 July 1994 by Timo Taavetti Kaukonen

(subsequently Teemu Martti Kaukonen) against Finland and registered on

1 August 1994 under file No. 24738/94;

Having regard to he reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 13 September 1996 and the observations in reply submitted

by the applicant successor on 11 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The original applicant was a Finnish citizen, born in 1933. He

died in January 1996. His son, Mr Teemu Kaukonen, a Finnish citizen

born in 1960 and resident in Joensuu, has expressed his wish to pursue

the application on his father's behalf. He is represented by

Mr Heikki Salo, a lawyer in Helsinki.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

In January 1989 the District Court (kihlakunnanoikeus, härads-

rätten) of Pyhäjärvi convicted L of assault, sentenced him to

six months' conditional imprisonment and ordered him to pay damages.

Subsequently L appointed the original applicant (who was not a lawyer)

to act as his counsel in private prosecution proceedings directed

against TR, Chief of the Police District of Pyhäjärvi, and S, a witness

examined by the District Court in the afore-mentioned case against L.

TR was suspected of having committed an offence in office while in

charge of the pretrial investigation into the offence committed by L.

S was suspected of having deliberately given false testimony to the

District Court and of having omitted certain information from his

witness statement without having been entitled under domestic law to

do so.

In January 1990 the District Court dismissed the charges against

S. In February 1990, having dismissed the charges against TR, it

convicted L and the original applicant of having accused TR maliciously

and of having defamed a public authority by relying on untruthful

information. They were sentenced to four months' unconditional

imprisonment. The District Court had apparently refused to examine

certain witnesses proposed by the defence.

In March 1992 the District Court, presided over by judge E,

convicted L and the original applicant of having accused S maliciously.

They were sentenced to three months and fifteen days' unconditional

imprisonment. As regards legal aid, the District Court considered that

it had been clearly unnecessary to hear the four witnesses proposed by

the original applicant (including K) and that the related costs should

therefore be borne by the defence. The District Court had apparently

refused to examine certain further witnesses proposed by the defence.

On 7 June 1993 the Vaasa Court of Appeal (hovioikeus, hovrätten)

dismissed L's and the original applicant's appeals, including, inter

alia, the original applicant's objections to the District Court's

minutes from a hearing on 29 January 1992 and to its refusal to hear

certain witnesses proposed by the defence. In September 1993 the

Supreme Court (korkein oikeus, högsta domstolen) refused leave to

appeal.

In May 1992 the original applicant instituted private prosecution

proceedings before the Court of Appeal against judge E, deputy county

police superintendents JV and TS (who had initially prosecuted L and

the original applicant for their malicious accusation against S), the

above-mentioned police chief TR as well as police inspector MK and

senior police officer PR (who had both been TR's inferiors). All were

suspected of having committed offences in office in the proceedings

resulting in the conviction of L and the original applicant in March

1992. At its hearing on 29 January 1992 the District Court's

composition had allegedly not been in accordance with the law, as E had

refused to present his letter of appointment. Reference was also made,

inter alia, to the manner in which E had reproduced in the District

Court's minutes the original applicant's statements at the same

hearing. Furthermore, at the hearing on 18 March 1992 E had not allowed

the examination of certain witnesses proposed by the defence. The

original applicant also suspected JV of having given false testimony

to the District Court on 29 January 1992.

The original applicant furthermore requested that all defendants

should, jointly with the State, be ordered to pay him compensation for

mental suffering and cover his legal costs. Referring to an enclosed

affidavit signed by K, he finally requested an oral hearing enabling

the examination of K as a witness (in respect of the offences allegedly

committed by judge E).

The Court of Appeal obtained written observations from all

defendants as well as from its Prosecuting Counsel (kanneviskaali,

advokatfiskalen). The latter did not support the charges. The original

applicant did not avail himself of the opportunity to submit final

observations in reply.

In its two judgments of 7 June 1993 the Court of Appeal recalled

that when acting as a court of first instance it would, as a general

rule, hold an oral hearing, if this had been requested by a party or

there was otherwise a reason for proceeding in that manner. However,

if a claim presented to a court of appeal was manifestly ill-founded

there was no reason to hold an oral hearing. As this was the case with

the claims in question, the Court of Appeal dismissed the hearing

requests in the respective cases. It furthermore refused to take into

account the affidavit signed by the above-mentioned K.

In concluding that the claims were manifestly ill-founded the

Court of Appeal noted, inter alia, that E had been properly appointed

to preside over the District Court at its hearing on 29 January 1992.

Moreover, the proceedings before the District Court resulting in the

original applicant's conviction for having maliciously accused S had

been thoroughly and diligently conducted. The original applicant had

been allowed to examine all witnesses who might have known something

about the relevant matter. Furthermore, the District Court had been

right in refusing to allow the examination of such persons who,

according to the preliminary information available to it, could not

have stated anything of importance to the outcome of the case.

Concluding that judge E had not acted contrary to his official duties,

the Court of Appeal dismissed the private prosecution and the related

claims for damages against him. It reached the same conclusion with

regard to JV and TS.

The Court of Appeal declined jurisdiction in respect of the

suspected false testimony given by JV, as this could not be

characterised as an offence in office. As to the remainder of the case,

the Court of Appeal also declined jurisdiction, noting that TR, MK and

PR were to be prosecuted for suspected offences in office before the

competent District Court.

When deliberating on the claims against JV and TS the Court of

Appeal had at its disposal its own file in the case leading to the

original applicant's conviction for the malicious accusation against

S. When deliberating on the claims against judge E it also had at its

disposal his handwritten draft minutes from the District Court's

hearings on 29 January and 18 March 1992 as well as the audio tapes of

those hearings. On 5 January 1994 the Supreme Court, having

examined their merits, dismissed the original applicant's appeals

against the Court of Appeal's judgments. The Supreme Court held no oral

hearing and there is no indication in its judgments that a hearing had

been requested.

In February 1994 the original applicant requested the Supreme

Court to quash or annul the Court of Appeal's judgments. These requests

were apparently dismissed. The original applicant also sought to have

proceedings instituted against those members and referendaries of the

Court of Appeal and the Supreme Court who had examined his charges of

May 1992 and his subsequent appeal. These attempts apparently failed.

B. Relevant domestic law

The damages to be paid under the 1974 Tort Liability Act

(vahingonkorvauslaki, skadeståndslag 412/1974) comprise compensation

for personal and material injury. A right to compensation for material

damage which is not directly linked to a personal or material injury

will arise if the damage is caused through a criminal offence or in the

exercise of public authority or if there are otherwise particularly

weighty reasons (chapter 5, section 1). The victim of a personal injury

is entitled to receive compensation for, inter alia, physical suffering

and any other permanent prejudice (chapter 5, section 2).

According to the title of chapter 26 of the Code of Judicial

Procedure, it deals with the procedure in cases in which an appeal has

been lodged with a court of appeal. Chapter 27 sets out the procedure

in cases where a court of appeal acts as a court of first instance. The

Supreme Court has found, in view of the nature of the matter and the

requirements of legal safety, that a court of appeal acting as the

court of first instance should not have dismissed the plaintiffs'

request for an oral hearing for the purpose of examining witnesses. The

case was therefore remitted to the court of appeal for the holding of

a hearing (judgment No. 1988:114).

Chapter 30 of the Code of Judicial Procedure governs the

procedure before the Supreme Court in all cases. There is no need to

obtain leave to appeal if the Supreme Court acts as the first appellate

court.

COMPLAINTS

Following the Commission's partial decision on admissibility (see

below: "Proceedings before the Commission"), the remaining complaints

concern the private prosecution proceedings which the original

applicant brought against judge E and deputy county police

superintendents JV and TS and, more specifically:

1. The lack of an oral hearing.

2. The alleged unfairness resulting from the lack of equality of

arms and the Court of Appeal's refusal to hear certain witnesses

proposed by the original applicant.

3. The alleged lack of an effective remedy and the allegedly

discriminatory outcome of the proceedings.

Article 6 (notably para. 3 (d)) as well as Articles 13 and 14 of

the Convention have been invoked.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 July 1994 and registered on

1 August 1994.

By a partial decision of 17 January 1996 the Commission (First

Chamber) decided, pursuant to Rule 48 para. 2 (b) of the Rules of

Procedure, to communicate to the respondent Government the complaint

regarding the lack of an oral hearing in the private prosecution

proceedings.

On 12 March 1996 the Government informed the Commission that the

original applicant had died. The Government's time-limit for the

submission of their written observations was then suspended. On

22 May 1996 the applicant successor stated his wish to pursue the

application on his deceased father's behalf.

On 2 July 1996 the Government was again invited to submit their

written observations. These were submitted on 13 September 1996. The

applicant successor replied on 11 November 1996.

On 2 December 1997 the case was transferred from the First

Chamber to the Plenary Commission, by decision of the latter.

THE LAW

1. The Commission recalls that close relatives of a deceased

applicant are in principle entitled to take his or her place in the

proceedings before the Convention organs (see, e.g., Eur. Court HR,

Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287,

pp. 14-15, paras. 31-32 with further references). In the circumstances

of the present case the Commission therefore accepts that the original

applicant's son may pursue the application on his behalf.

2. The original applicant complained about the lack of an oral

hearing in the private prosecution proceedings which he had brought

against judge E and county police superintendents JV and TS. He invoked

Article 6 (Art. 6) of the Convention and notably Article 6 para. 3 (d)

(Art. 6-3-d).

The Commission has examined this complaint in the light of

Article 6 para. 1 (Art. 6-1) which reads, as far as relevant, as

follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing ... by an independent and

impartial tribunal established by law. ...

The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable, since there was no dispute over a "civil

right" which could arguably be considered recognised in domestic law.

It is true that the original applicant claimed compensation for mental

suffering caused by the crimes allegedly committed by E, JV and TS. It

is the Government's contention, however, that he did not claim

compensation for actual personal injury (such as bodily harm) or

material damage (such as damage to property).

Should Article 6 para. 1 (Art. 6-1) nevertheless be found to

apply, the Government concede that Finland's reservation as to the

right to an oral hearing does not extend to proceedings in which a

court of appeal acts as the court of first instance. However, the

dispute before the Vaasa Court of Appeal did not give rise to any

questions of public interest requiring an oral hearing. The material

at the Court of Appeal's disposal was sufficiently extensive. Besides,

oral hearings contribute to the length of proceedings and significantly

increase the costs of the procedure. The dispute was therefore better

dealt with in writing and chapter 27 of the Code of Judicial Procedure

does not stipulate that a court of appeal must hold an oral hearing in

a case where it acts as the court of first instance. In practice only

minor criminal matters have been resolved in written proceedings.

Proceedings regarding suspected offences in office have, as a general

rule, also been conducted in writing. The Government refer, however,

to the Supreme Court's precedent No. 1988:114 (see "Relevant domestic

law and practice").

The Government submit, moreover, that the original applicant was

ultimately able to put to the Supreme Court all the arguments he wished

to make and also to have them considered by that tribunal which had

full appellate jurisdiction in the case. The Government recall,

however, that in its reservation Finland has stated that it cannot

guarantee a right to an oral hearing before the Supreme Court in so far

as current Finnish laws do not provide such a right. This reservation

applied to the proceedings before the Supreme Court in the present

case.

The applicant successor contends that Article 6 para. 1

(Art. 6-1) is applicable. The original applicant's compensation claim

was based on chapter 5, section 1 of the Tort Liability Act which

guarantees a right to compensation for material damage even if it is

not directly linked to a personal or material injury, provided the

damage was caused in the exercise of public authority. It is alleged

that already the prison sentence which the original applicant had had

to serve - allegedly despite his being innocent - had caused him such

damage. In the private prosecution proceedings he also claimed

compensation for his legal costs.

On the assumption that Article 6 para. 1 (Art. 6-1) is found to

apply, the applicant successor submits that Finland's reservation

cannot be interpreted so extensively as to permit the complete lack of

an oral hearing "in a criminal case". An oral hearing would have been

necessary so as to enable the original applicant to examine some of the

witnesses whom he had unsuccessfully proposed to the District Court in

the criminal proceedings against himself. An affidavit signed by K

clearly indicated that her testimony would have been relevant.

Reference is also made to the particular circumstances at hand: In the

proceedings against himself the original applicant had been convicted

of acts which he had performed in his capacity as L's counsel.

Moreover, his private prosecution was directed against officials

exercising public authority.

The Commission finds that Article 6 para. 1 (Art. 6-1) is not

applicable under its "criminal head", given that the original applicant

was not himself charged with a criminal offence in the proceedings in

question. Likewise paras. 2 and 3 do not apply in this case. The

Commission recalls that the applicability of Article 6 para. 1

(Art. 6-1) under its "civil head" requires the existence of "a genuine

and serious dispute" over a "civil right" which can be said, at least

on arguable grounds, to be recognised under domestic law. A claim

submitted to a tribunal for determination must be presumed to be

genuine and serious unless there are clear indications to the contrary

which might warrant the conclusion that the claim is frivolous or

vexatious or otherwise lacking in foundation (see Eur. Court HR, Rolf

Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV, No. 41,

para. 38 and further references therein; ).

The Commission notes that in his private prosecution the original

applicant claimed compensation both for mental suffering and for his

legal costs. The Commission will assume that his right to such damages

could be said, at least on arguable grounds, to be recognised under

domestic law. There was thus, in principle, a dispute regarding a

"civil right" of his (cf., a contrario, Hamer v. France judgment of

7 August 1996, Reports 1996-III, No. 13, p. 1044, paras. 75-78).

As regards the question whether the dispute was "genuine and

serious", the Commission notes that one of the purposes of the

proceedings was to obtain damages from Judge E and county police

superintendents JV and TS on account of their purported offences in

office. Those offences were alleged to have been committed in the

course of the criminal proceedings leading to the original applicant's

conviction for having maliciously accused S.

However, the Commission cannot find that the original applicant

substantiated his private prosecution against E, JV and TS by

submitting new relevant evidence which had not already been available

to the courts in the proceedings leading to his own conviction for the

malicious accusation against S (cf., mutatis mutandis, Rolf Gustafson

v. Sweden, Comm. Report 18.10.95, para. 50, Eur. Court HR, to be

published in Reports of Judgments and Decisions 1997). Thus, in

examining whether defendants E, JV and TS had acted contrary to their

official duties the Court of Appeal relied on its own file in the case

leading to the original applicant's conviction. That file presumably

included the District Court's judgment, the official minutes from its

hearings, the transcripts of the witness testimony and the parties'

written submissions. Moreover, when deliberating on the original

applicant's claims against judge E, the Court of Appeal had at its

disposal both its own file in the case resulting in the original

applicant's conviction and various further material emanating from the

District Court's hearings on 29 January and 18 March 1992. Contrary to

what has been asserted before the Commission, K was in fact examined

by the District Court in the proceedings leading to the original

applicant's conviction. It must be presumed that either the Court of

Appeal's own case-file or the further material which it had obtained

from the District Court in the private prosecution proceedings included

K's testimony in the case against the original applicant. It has not

been shown that he requested the hearing of any other witness in the

private prosecution proceedings. Nor has it been alleged that he was

prevented from expressing his misgivings with E's, JV's and TS's

conduct of the trial and the prosecution already during the proceedings

leading to his own conviction. On the contrary, his objections to the

District Court's minutes from the hearing on 29 January 1992 and to its

refusal to hear certain witnesses proposed by the defence were examined

and dismissed by the Court of Appeal in its judgment of 7 June 1993,

following which the Supreme Court refused leave to appeal. Finally, it

is noteworthy that the Prosecuting Counsel of the Court of Appeal did

not support the original applicant's private prosecution. In the

Commission's view these circumstances provide sufficiently clear

indications that the dispute in question was not genuine and serious.

Accordingly, Article 6 para. 1 (Art. 6-1) is not applicable in the

instant case.

It follows that this complaint is incompatible ratione materiae

with the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

3. The original applicant furthermore complained about the alleged

unfairness of the private prosecution proceedings against judge E and

prosecutors JV and TS. There had allegedly been no equality of arms and

he had not been allowed to call witnesses. He again invoked Article 6

(Art. 6) of the Convention.

The Commission has just found that Article 6 (Art. 6) is not

applicable in the present case. It follows that this complaint is also

incompatible ratione materiae with the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

4. The original applicant finally complained about the alleged lack

of an effective remedy in the private prosecution proceedings and about

their allegedly discriminatory outcome. He invoked Articles 13 and 14

(Art. 13, 14) of the Convention which read as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission recalls that the respective rights guaranteed by

Articles 13 and 14 (Art. 13, 14) can only relate to a right or freedom

protected by one of the substantive provisions of the Convention or its

Protocols (see, e.g., Eur. Court HR, Pierre-Bloch v. France judgment

of 21 October 1997, Reports 1997-VI, No. 53, paras. 62-64).

Given the Commission's finding above that Article 6 (Art. 6) of

the Convention does not apply in the instant case, Articles 13 and 14

(Art. 13, 14) are also inapplicable.

It follows that this complaint is also incompatible ratione

materiae with the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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KAUKONEN v. FINLAND

KAUKONEN v. FINLAND